Baby products business Mothercare created a “sham” redundancy to sack an employee who took maternity leave.
The retailer, which claims its brand “resonates strongly with families the world over”, unfairly dismissed Nichola Osborn, a tribunal ruled.
Its technical manager took legal action against the firm after she was replaced with a man following a restructuring exercise.
Mothercare, which had kept the franchise arm of its business after it entered into administration in 2019 and trades from 450-plus stores globally, sacked Osborn in December 2021.
She had worked for the company since 2016 and took maternity leave in 2020.
Maternity discrimination
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At the time of her pregnancy, she had proposed to her manager that she start looking for maternity cover but was informed it wasn’t necessary, the tribunal heard.
It found this to be “a legitimate business decision”, however, the company’s new chief product officer later began a restructuring process and decided to bring in a particular candidate to replace Osborn.
The employment judge said: “We have been provided with no contemporaneous emails or other documentation dealing with how it was that the decision to make the claimant’s role redundant was arrived at. We find this extraordinary.”
The tribunal found she had then started managing her out of the business. It ruled Osborn had been treated unfavourably because of her maternity leave, stating “there was no genuine redundancy situation”.
However, it dismissed her claims for automatically unfair dismissal and sex discrimination.
Liz Stevens, legal director in the employment law team at Birketts, said: “It is clear from the judgment in this case that the employer was unable to persuade the tribunal that the claimant’s redundancy was genuine, but instead had been engineered in order to bring someone else into the business during her maternity leave.”
She highlighted that the judgment was particularly critical of the lack of evidence provided by key witnesses and significant gaps in the documentary evidence, with the judge commenting on the lack of contemporaneous documentation dealing with how the decision to make the claimant’s role redundant was arrived at as being “extraordinary” and “inconceivable”.
“This lack of evidence is likely to have been highly influential in the tribunal’s decision finding the dismissal to be unfair and discrimination due to the claimant’s maternity leave. It is a reminder of how important it is for employers to fully document the decision-making process and keep records that can be presented as evidence if a decision is later challenged,” Stevens said.
She explained that even if the redundancy had been found to be genuine, the tribunal further held that the decision had been reached during the Osborn’s “protected period”, meaning that she should have been offered the suitable alternative role of head of technical. At the time of the events that took place in this case, the protected period only covered the period of an employee’s maternity leave.
Stevens added: “Employers should note that since 6 April 2024, the protected period has been extended to cover a period of six months following an employee’s return to work. During that period, if a redundancy situation arises, the employee has the right to be offered any alternative employment in priority to other affected employees. In addition, under the government’s new Employment Rights Bill, employees who have taken a period of maternity leave will gain additional protection from dismissal, for reasons other than redundancy.”
Mothercare has been contacted for comment.
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